UPDATE: Canada: Charges against Polygamist leader dropped

On 23 September 2009 the charges against Winston Blackmore and James Oler were dropped and the British Columbia (B.C.) Supreme Court ruled that the second appointed prosecutor's decision not to proceed with a prosecution was final and binding. Therefore, for the past 17 years, polygamy has effectively been legal in British Columbia because the B.C. government has consistently refused to prosecute polygamists fearing that the law (Sec. 293 of the Criminal Code) may be unconstitutional.

Two members of a Canadian sect known as the Bountiful, a split branch of the Fundamentalist Church of Jesus Christ of Latter-day Saints (FLDS), were arrested on January 2009 for practicing polygamy in British Columbia (BC): Winston Blackmore has 19 wives – nine of whom were 18 or younger when they married – and 100 children, while James Oler has five wives. The arrest followed the appointment of a prosecutor, Terry Robertson, by former BC Attorney-General Wally Oppal, who took a personal interest in barring polygamy. On 7 January, Robertson charged Blackmore and Oler with one count each of polygamy. Robertson’s decision to proceed with a criminal prosecution was quashed on 23 September, however, when the B.C. Supreme Court ruled Peck’s decision not to proceed with a prosecution was final and binding on Attorney-General Oppal. Consequently, the Supreme Court justice quashed the appointment of Robertson as a special prosecutor and quashed his decision to approve charges in this matter.

Deliberations about the alleged polygamy at Bountiful go back to 1990. Despite the Canadian Police having launched numerous investigations into Bountiful, prosecutors have repeatedly shied away from laying charges. "Rather than go ahead and charge and let the accused persons raise the argument about the law being unconstitutional, they got paralyzed into not doing anything and that's allowed basically a generation of polygamous conduct in British Columbia to go on," said Huscroft, a University of Western Ontario law professor. A number of Crown counsel and retired judges, consulted by the provincial attorney-general, concluded over the years that there was “no substantial likelihood of conviction.” That advice was not based on the evidence, but on the conflict between the Charter right to religious freedom and the Criminal Code's prohibition of polygamy.

Encouragingly, on 23 October 2009 the new Attorney-General Mike de Jong filed a request asking the B.C. Supreme Court to rule on Sec. 293’s constitutionality (or its consistency with the Canadian Charter of Rights and Freedoms). Polygamy, according to the United Nations, is inherently harmful to the rights of women and children. For Canada's polygamy law to be upheld, the B.C. government must prove that. The B.C. government said it decided to seek an opinion rather than appeal a court ruling that quashed polygamy charges against Blackmore and Oler. "Until Canadians and the justice system have clarity about the constitutionality of our polygamy laws, all provinces, including ours, face a lengthy and costly legal process in prosecuting alleged offences," De Jong said in a statement.

By going first to the B.C. Supreme Court - instead of the Court of Appeal as both the first special prosecutor Richard Peck and another outside adviser, Leonard Doust, recommended - witnesses can be called to give evidence and talk about what life is like in a polygamous culture, and in so doing, put a human face on the crime of polygamy. Getting evidence into the record was the reason that Oppal deemed it important to reject both Peck's and Doust's recommendations (like the Supreme Court of Canada, the Court of Appeal does not hear evidence).

While some, like Daphne Bramham, a journalist working for the Vancouver Sun, is relieved that at last the B.C. government is making the right move on polygamy, others, like CTV legal analyst Steven Skurka, told CTV News Channel that this could be a long court battle: "I think this is going to be a real test for the court," Skurka said. "I'm not predicting which way this will end up its certainly going to be a close call."

B.C. Supreme Court Chief Justice Robert Bauman agreed Friday to the appointment of Vancouver lawyer George Macintosh as an "amicus" in the constitutional reference case to determine whether Canada's anti-polygamy law is constitutional.

Macintosh will argue that Criminal Code Section 293, which prohibits having multiple spouses, is unconstitutional and ought to be allowed. He will be making the case against the combined forces of the B.C. attorney general's ministry and the Canadian justice department.

The decision is the first step in an unusual and unprecedented reference case. It is the first time in B.C. and possibly Canada that a constitutional reference has been heard in a trial court where lawyers for both sides can call witnesses.

Bauman also directed that any interested persons or groups that wish to intervene in the case should be notified and agreed that they would be heard. In his written ruling, Bauman said that he anticipated that both Winston Blackmore and James Oler would participate as intervenors. Blackmore and Oler were the two leaders from the fundamentalist Mormon community of Bountiful who were charged with one count each of polygamy. Those charges were quashed by a B.C. Supreme Court justice and rather than appeal her ruling, Attorney General Mike de Jong decided to pursue a reference case.